The State of Western Australia v Lam - [2014] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- LAM [2014] WADC 62

CORAM: BOWDEN DCJ

HEARD: 20 MARCH 2014

DELIVERED : 5 MAY 2014

FILE NO/S: IND 1161 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
KIN HOONG CORBIN LAM

Catchwords:

Vehicle stop and search pursuant to s 23 of the Misuse of Drugs Act - Senior officer's approval to enter and search a place that a person occupies, controls or manages - s 133(3), s 133(4) Criminal Investigations Act 2006 - Whether senior officer's approval is to search the entire home address or only the room exclusively occupied by the accused and the areas he shares in common with others

Legislation:

Criminal Investigations Act 2006 s 3, 4, 133
Misuse of Drugs Act 1981 s 23

Result:

Vehicle stop and search, and subsequent arrest of the driver lawful

Representation:

Counsel:

The State of Western Australia : Ms L O'Connor
The accused : Mr T Elliott

Solicitors:

The State of Western Australia : Director of Public Prosecutions
The accused : Patti Chong & Co

Case(s) referred to in judgment(s):

Crowley v Murphy (1981) 52 FLR 123
Donaldson v Bottroff [1965] SASR 145
DPP (NSW) v Tamcelik (2012) 224 A Crim R 350
Fox v Warde [1978] VR 362
George v Rockett (1990) 170 CLR 104
Guthrie v Hamilton 1988 SCCR 330
Hussien v Chong Fook Kam [1970] AC 942
Kelly v Dann (1992) 8 WAR 225
Madrassa Anjuman Islamia of Kholwad v Johannesburg Municipal Council [1922] 1 AC 500
Mukevski v The State of Western Australia [2010] WASCA 138
Newcastle City Council v Royal Newcastle Hospital [1959] AC 248
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
R v Fox [1986] 2 Qd R 402
R v Hill (2012) 218 A Crim R 301
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
R v Tao [1976] 3 All ER 65
Spratt v Blake (1997) 92 A Crim R 91

BOWDEN DCJ:

The Directions Hearing

At a directions hearing held on 23 April 2014 the defence sought an order excluding the disputed evidence (drugs, cash, clipseal bags, and other things relating to alleged drug dealing) from the trial of Mr Kin Lam. This evidence was seized during a search, approved by a senior officer under the Criminal Investigation Act 2006 (the CIA) of his brother, Mr Aaron Lam's, house. Mr Kin Lam also lived at that house.
At the direction hearing Detective Sergeant Fuller and Detective Sergeant Walsh gave evidence and five exhibits were received.

A brief outline of the facts

On 6 February 2013 the accused's brother Mr Aaron Lam drove a Honda Jazz motor vehicle along Mirrabooka Avenue, Lansdale.
Police officers, purportedly acting pursuant to s 23 of the Misuse of Drugs Act 1981 (the MDA), stopped and searched that vehicle (the vehicle stop) and located about 13.4 g of a crystal substance hidden inside a deodorant located on the floor of the front passenger seat (exhibit 3). Detective Sergeant Fuller arrested Mr Aaron Lam on suspicion of possession of a prohibited drug with intent to sell and supply, a serious offence within the meaning of the CIA.
Detective Sergeant Fuller says he had a reasonable suspicion that a search of Mr Aaron Lam's home in Lansdale would locate further items relevant to that offence. Accordingly, he sought the approval of a senior officer pursuant to s 133(3), s 133(4) of the CIA to enter that home and search it (the house search).
The senior officer gave his approval (exhibit 5) and the search was subsequently conducted.
The home was normally occupied by Mr Aaron Lam, his parents, his sister and his brother, Mr Kin Lam, the accused.
Police searched a bedroom, described by Mr Aaron Lam as a room his grandmother stayed in and a room he used and located numerous items of interest including clipseal bags, scales, cash and methylamphetamine. The key to that room was provided by Mr Kin Lam. Nothing of interest was located in the search of Mr Aaron Lam's bedroom. The police searched the room of Mr Kin Lam and located a safe. It is alleged that approximately 18 g of ecstasy, 2 g of methylamphetamine, $47,550 cash and other paraphernalia were recovered from Mr Kin Lam's bedroom and safe (the disputed evidence) (exhibits 4.2, 4.3). Mr Kin Lam allegedly told the police that he knew drugs were in his room and he gave drugs including methylamphetamine and ecstasy to his friends (exhibit 4.1).
Mr Kin Lam was later charged with having, on 6 February 2013 at Lansdale, possessed with intent to sell or supply the ecstasy (count 1) and methylamphetamine (count 2). Each offence carries a maximum penalty of 25 years imprisonment or $100,000 fine or both.

The defence application

Mr Kin Lam seeks a direction that the disputed evidence located during the search of his bedroom and safe be ruled inadmissible on the following basis.
Firstly, the defence say, the police had no lawful basis for the vehicle stop of Mr Aaron Lam's vehicle under s 23 of the MDA and therefore the State should not be able to use anything derived from that unauthorised and illegal search in the case against Mr Kin Lam. They say the State is indirectly using things derived from that unauthorised search because the drugs allegedly in the possession of Mr Aaron Lam during the vehicle stop were used as grounds justifying his arrest and the approval of the search of Mr Aaron Lam's place and during that search the police allegedly found drugs in the room and safe of Mr Kin Lam.
Secondly, they say the police had no lawful grounds to obtain the house search approval under s 133 of the CIA as the searching officers could not reasonably suspect that there was anything relevant to the serious offence that Mr Aaron Lam had been charged with at the place of Mr Aaron Lam and the officers could not have held a reasonable suspicion that illicit items would be found in a room occupied exclusively by Mr Kin Lam.
Thirdly, the defence say that the search of Mr Aaron Lam's place pursuant to s 133 of the CIA only authorised the search of those parts of the place actually occupied by Mr Aaron Lam or which he uses in common with others so the search of Mr Kin Lam's bedroom was not authorised by the Act.
They point out that had the searching officers wished to search Mr Kin Lam's bedroom s 13 of the CIA permits the issue of urgent warrants via remote communication and they could have applied under that section for an urgent warrant.
By whichever route is used the defence say the disputed evidence ought be ruled inadmissible or I, at the least, should exercise my discretion and exclude it.

The legislation

The CIA provides:
3.Interpretation:
(1)In this Act, unless the contrary intention appears –
…
'occupier' of a place, includes any person who appears to have the control or management of the place
…
'place' means any land, building, structure, tent or mobile home or any part of any land, building, structure, tent or mobile home;
…
4.       'Reasonably suspects', meaning of
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non‑existent), when judged objectively, are reasonable.
5.       'Thing relevant to an offence', meaning of
(1)For the purposes of this Act, a thing is a thing relevant to an offence if it is reasonably suspected that —
(a)the thing has been, is being, or is intended to be used for the purpose of committing an offence;
(b)the thing has been obtained by the commission of an offence;
(c)an offence has been, is being, or may be committed in respect of the thing;
(d)the thing is or may afford —
(i)evidence relevant to proving the commission of an offence or who committed an offence; or
(ii)evidence that tends to rebut an alibi.
(2)For the purposes of this Act, a thing relevant to an offence may be material or non‑material, animate (other than human) or inanimate.
…
39.     Vehicle, search of for things relevant to offence
(1)If an officer reasonably suspects —
(a)that a vehicle is carrying a thing relevant to an offence; or
(b)that a vehicle is a thing relevant to an offence; or
(c)that a vehicle is carrying a person against whom an offence may have been, or may be being, committed; or
(d)that an offence has been, is being, or is about to be, committed in a vehicle,
the officer —
(e)may stop, enter and search the vehicle; and
(f)may, under section 46, establish a protected forensic area around or in the vehicle; and
(g)may, subject to section 146, seize any thing relevant to the offence; and
(h)may take any action that is reasonably necessary to stop any offence that is being, or prevent any offence that may be, committed against a person in the vehicle.
(2)If an officer doing a search under this section finds a thing relevant to an offence other than the offence giving rise to the search, the officer may, subject to section 146, seize it.
(3)If an officer doing a search under this section finds a thing that may be seized under this section, then whether or not the officer seizes it, the officer may do a forensic examination on it.
(4)The powers in subsection (1) may be exercised by an officer in the area associated with a dwelling but only if the officer reasonably suspects that —
(a)the person in charge of the vehicle does not reside in the dwelling; and
(b)the vehicle is not in that area with the express or implied permission of a person who does reside in the dwelling.
…
133Places and vehicles of certain arrested suspects may be searched for evidence
(1)In this section —
senior officer means —
(a)in relation to a police officer — a police officer who is, or is acting as, a sergeant or an officer of a rank more senior than a sergeant;
(b)in relation to a public officer — a public officer prescribed as a senior officer in relation to that officer;
serious offence means an offence the statutory penalty for which is or includes imprisonment for 5 years or more or life.
(2)If a person is under arrest for a serious offence, a police officer or a public officer —
(a)may enter the place in which the person was when he or she was arrested or from which the person fled immediately before being arrested; and
(b)may stop and enter any vehicle in which the person was when he or she was arrested or from which the person fled immediately before being arrested; and
(c)may stop and enter any vehicle that the person controls or manages, whether or not he or she was arrested in that vehicle,
and search it for —
(d)any thing relevant to the serious offence; or
(e)any person against whom the serious offence was committed.
(3)If a person is under arrest for a serious offence then, subject to subsection (4), a police officer or a public officer may enter a place that the person occupies, controls or manages, not being a place referred to in subsection (2)(a), and search it for —
(a)any thing relevant to the serious offence; or
(b)any thing relevant to an offence that is connected with, or of the same character as, the serious offence; or
(c)any person against whom the serious offence, or an offence that is connected with, or of the same character as, the serious offence, was committed.
(4)The powers in subsection (3) must not be exercised by an officer unless —
(a)the officer reasonably suspects that the place contains a thing or person referred to in subsection (3)(a), (b) or (c); and
(b)the officer has written approval to do so from a senior officer who is not involved in the investigation of the serious offence.
(5)A senior officer who gives such an approval must make a written record of it and —
(a)the place to be entered and searched; and
(b)the thing suspected to be in the place; and
(c)the other officer’s grounds for suspecting that the place contains a thing or person referred to in subsection (3)(a), (b) or (c); and
(d)the date and time when it was given; and
(e)the reasons for giving it.
(6)The powers in subsections (2) and (3) cease when the person is charged with an offence or is released from arrest, whichever happens first.
(7)If an officer doing a search under subsection (2) or (3) finds a thing relevant to an offence, whether the serious offence or another offence, the officer —
(a)may, subject to section 146, seize the thing; and
(b)whether or not the officer seizes the thing, may do a forensic examination on it.
(8)A senior officer's approval under this section may be applied for and given by remote communication.
…
154.     Evidence obtained improperly
(1)In this section —
authorisation includes a warrant and an order.
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act —
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless —
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
155.     Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account —
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence —
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
The MDA provides:
23. Powers of police officers when things suspected of being used in commission of offences
(1)Subject to this section, if there are reasonable grounds to suspect that anything whatsoever —
(a)with respect to which an offence has been, or is suspected to have been, or may be committed; or
(b)which has been, or is suspected to have been, or may be used for the purpose of committing an offence; or
(c)which may provide evidence in respect of an offence,
is in the possession of a person, a police officer may, using such force as is reasonably necessary and with such assistance as he considers necessary, stop and detain the person and search him together with any baggage, package, vehicle or other thing of any kind whatsoever found in his possession, and for that purpose may stop and detain any vehicle.
…

The vehicle stop

Was the vehicle stop authorised?

For a vehicle stop to be authorised under the MDA (s 23) the 'stopping' police officer must have reasonable grounds to suspect that anything whatsoever with respect to which an offence has been or is suspected to have been or may be committed, or which has been or is suspected to have been, or may be used for the purpose of committing an offence, or which may provide evidence in respect of an offence, is in the possession of a person and then that person may, inter alia, be stopped and any vehicle in his possession stopped and searched.
It seems to me that the phrase 'reasonable grounds to suspect' referred to in the MDA and 'reasonable suspects' in the CIA involve precisely the same concept. In the context of this case the 'anything' referred to in s 23 of the MDA is methylamphetamine. That is, Detective Sergeant Fuller says he had reasonable grounds to suspect that Mr Aaron Lam had in his possession, whilst driving the vehicle, methylamphetamine with the intent to sell or supply it.
Suspicion 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking ... the facts which can reasonably ground as suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown': Hussien v Chong Fook Kam [1970] AC 942, 948.
A suspicion that something exists is more than a mere idle wondering whether it exists or not, it is a positive feeling of actual apprehension or mistrust amounting to a slight opinion, but without sufficient evidence; a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence: Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303(Kitto J), George v Rockett (1990) 170 CLR 104, 112, 115 – 116.
In R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 [53] (Smart JA) said three propositions emerge from the cases being:
(a)A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs [in this case covered by s.23]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
(b)Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
(c)What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
Although the existence and reasonableness of the grounds forming the basis of the suspicion may be inferred from a combination of the proven facts the suspicion must be an actual or concrete suspicion held by the officer when carrying out the vehicle stop: Kelly v Dann (1992) 8 WAR 225, Spratt v Blake (1997) 92 A Crim R 91.
Detective Sergeant Fuller has been a detective for seven years and a police officer for 14 years. At the relevant time he was stationed at Mirrabooka and was a supervisor mainly dealing with drug investigations.
He says that in January 2013 (exhibits 2.1, 2.2) he became aware of information from a human source relating to an Asian male person 'Aaron' suspected of dealing drugs. The information was, inter alia, that Aaron drove a silver Honda Jazz with a specific registration number and was in possession of methylamphetamine. Information was also received about associates he allegedly dealt drugs with. This intelligence was rated by Detective Sergeant Fuller, using the police state intelligence unit reliability and validity ratings (exhibit 1), as B2 (usually reliable and probably true).

Detective Sergeant Fuller's further research and background checks revealed that the vehicle was registered to a Mr Van Lam of the same address as Mr Aaron Lam, who was of Asian descent, and the latter had received a traffic infringement whilst driving that motor vehicle and was on bail for possession of methylamphetamine in October 2012 with intent to sell or supply.
Detective Sergeant Fuller received further information on 6 February 2013 (exhibit 2.3) that Mr Aaron Lam was believed to be in possession of a large quantity of methylamphetamine and may be supplying some drugs to someone that day. Detective Sergeant Fuller gave this information a reliability and validity ratings of B6 (usually reliable and accuracy of the report cannot be judged) which he said reflected a high likelihood of accuracy of the information with the source of the information being previously accurate but the specific information not being able to be assessed at the time the report was submitted.
Detective Sergeant Fuller said he and Detective Robinson conducted surveillance of Mr Aaron Lam's address on 6 February 2013 and observed a Honda Jazz with the same registration number as in the information provided leave an address in Landsdale.
As a result of the intelligence received, his own research and the criminal history of Mr Aaron Lam, Detective Sergeant Fuller said he formed a suspicion that Mr Aaron Lam would be in possession of methylamphetamine with intent to sell or supply whilst driving the vehicle at that time so he stopped and searched the vehicle.
Mr Elliott says the police did not hold the necessary reasonable grounds of suspicion to justify the vehicle stop. Whilst not disputing the police had certain information and suspicions at the material time which might justify a level of suspicion about Mr Aaron Lam ,he says it falls short of that required to justify a search of Mr Lam's vehicle on this occasion.
Mr Elliott criticised Detective Sergeant Fuller's evidence as lacking credibility due to a lack of frankness over some matters and as being dishonest in other respects.
Mr Elliott pointed out that Detective Sergeant Fuller provided seven statements in relation to this investigation and in some of those statements, he effectively said that on the date of the vehicle stop the police were conducting patrols in the Landsdale area, and while conducting those patrols observed the Honda vehicle depart and later activated their lights and stopped the vehicle.
Mr Elliott said this was not entirely frank because the reality is, as Detective Sergeant Fuller admitted, the police were not on patrol in the Landsdale area but had Mr Aaron Lam under surveillance because of the information they had received.
Further, Mr Elliott says in some of Detective Sergeant Fuller's statements, made when he knew there was an issue over the vehicle stop, he referred to receiving intelligence reports and stated those reports were rated using an 'admiralty rating', and said that he reviewed the intelligence reports and considered the ratings when determining the course of action to take. The impression being given that the reports and ratings where from an independent source.
Mr Elliott points out that Detective Sergeant Fuller admitted that he had compiled the information reports and he had ascribed the admiralty ratings.
Ms O'Connor, on behalf of the State, says that Detective Sergeant Fuller may have been overzealous or overprotective in trying to conceal rather than disclose police methodology and the fact that the police had received specific intelligence from a human source relating to Mr Aaron Lam.
Clearly Detective Sergeant Fuller's statements neglected to disclose that he prepared the information reports and assigned the admiralty ratings. The statements gave the misleading impression that the information reports and admiralty ratings had been prepared by others and then considered by him. This was a serious omission that ought not be repeated.
However, notwithstanding the shortcomings in the evidence of Detective Sergeant Fuller, I do accept that the information reports were prepared by him as a result of the information he received from a human source and that he determined the admiralty ratings according to his opinion of the reliability and accuracy of those reports.
The critical issue is whether the information Detective Sergeant Fuller put into the reports was received by him from a human source and I accept that it was.
Detective Sergeant Fuller was hyper-vigilant over anything to do with the sources of information received by the police and whilst this does not justify or excuse the manner in which the statements were provided or the wording of the statements, I do accept his evidence that he prepared the reports from information he received.
Detective Sergeant Robinson said that he took action after he considered the weight and value of the intelligence he received from human sources, his own observations, research and experience and said he had reasonable grounds to search Mr Lam's vehicle under the provisions of the MDA.
I am satisfied that Detective Sergeant Fuller actually held that suspicion that Mr Aaron Lam was in possession of a methylamphetamine with intent to sell or supply it at the time the vehicle was stopped and that suspicion was based on grounds that objectively considered were reasonable, as was his suspicion and accordingly, the vehicle stop was authorised by s 23 of the MDA.
The information linked 'Asian Aaron' to drug dealing and a specific vehicle. That vehicle was linked to Mr Aaron Lam and his address. Mr Aaron Lam is Asian and was linked to drug dealing and the information referred to Mr Aaron Lam being in current possession of methylamphetamine and meeting with an associate that day.
A reasonable person in possession of all that information would have reasonable grounds to form the suspicion that Mr Lam was in possession of methylamphetamine and involved in ongoing drug trafficking at the time of the vehicle search.
Although Detective Sergeant Fuller referred to his suspicions as being based on reasonable grounds it is for me to objectively determine whether he actually held the suspicion, and I accept that he did, and then for me to objectively consider whether there was reasonable grounds for it. In having found there was, my decision is not based on Detective Sergeant Fuller's opinion that he had reasonable ground for the vehicle stop.
The vehicle search was based on lawful grounds pursuant to s 23 of the MDA and that search located substances packaged in clipseal bags within the vehicle (exhibit 3) and this clearly provided a lawful basis for Detective Sergeant Fuller to arrest Mr Aaron Lam on suspicion of possession of a prohibited drug with intent to sell and supply.
Even if the vehicle stop was not authorised it does not prevent the police from investigating whether, as result of what they find at that stop, an offence has been committed: R v Rondo (577).
If the vehicle was unlawfully stopped it becomes a matter for the court's discretion under s 155 as to whether the State has satisfied the court that the evidence derived from the exercise of that purported power to stop the vehicle is admissible under s 154.

The house search

To enter and search a place under s133 of the CIA the officer must reasonably suspect that the place contains one or more of the things referred to in s 133(3)(a), s 133(b) or s 133(c), and the grounds for that suspicion when judged objectively must be reasonable and senior officers, not involved in the investigation, must approve the request and keep a written record of that approval and the other matters specified by s 133(5).
The senior officer Detective Sergeant Walsh gave evidence. His written record of approval for the search and entry reveals that he had recorded the following (exhibit 5):
… It is the requesting officer's belief that a search of the offender's home address located at 20 Wexford Meander, Landsale will locate further items as described relating to the serious offence as listed.
… It is the approving officer's opinion that a search of the offender's home address as requested will yield further items as described relating to the serious offence.
The senior officer's approval described as 'things suspected to be in the place', both 'a thing relevant to the serious offence', and 'a thing relevant to an offence that is connected with, or of the same character, as the serious offence', and described those things as '… drugs, implements and utensils connected to the use of prohibited drugs, documents and notations relating to the sale/supply of drugs, money and electronic storage devices'.
It emerged during cross‑examination of Detective Sergeant Walsh that the circumstances he took into account in his decision making process included the location where Mr Aaron Lam was stopped, and the fact that as it was a highly visible location it could potentially compromise the evidence that was available at the house when it was searched, the time that it would take Detective Sergeant Fuller to obtain a MDA search warrant, and the proximity of Mr Aaron Lam to his home address, although these factors were not included in the reasons given for his approval.
Detective Sergeant Walsh said these matters were part of the decision making process, but not the grounds for his decision. He ultimately agreed under cross‑examination that he had not recorded all the reasons for giving his approval. He should have.
This is particularly important as, unlike a search warrant granted by a Justice of the Peace, a senior officer's approval is granted by a police officer who, as in the circumstances of this case, may be attached to the same office as the arresting officer and there is clearly a need that all the reasons for approval be recorded, not just some of them.
The defence say the true effect of the CIA is that the approval to search a 'place' being for example an accused home address can only authorize a search of those portions of that house exclusively occupied by Mr Aaron Lam or the areas he uses in common with others and those areas exclusively occupied by other persons about whom the police had no suspicions of having committed any offence cannot be searched pursuant to that approval.
Before examining that question, the issue of Detective Sergeant Fuller's suspicion and whether it was a reasonable suspicion need be examined.

Did Detective Sergeant Fuller have the required suspicion, and if so, were the grounds for it reasonable?

Detective Sergeant Fuller's evidence was when he stopped the vehicle driven by Mr Aaron Lam he located a crystal substance in clipseal bags in a deodorant container and under the centre console. Detective Sergeant Fuller said he suspected the substance was methylamphetamine.
Detective Sergeant Fuller said his experience as a drug investigator caused him to suspect that a search of Mr Aaron Lam's address would provide further evidence including drug paraphernalia, scales, cash and the like.
I accept that Detective Sergeant Fuller actually held this suspicion and had reasonable grounds for his suspicion that a search of Mr Aaron Lam's home address would yield 'things' relevant to the serious offence.
Considering that drugs have been located in the vehicle of Mr Aaron Lam, who was on bail for a serious drug offence at that time, and he was in the process of transporting those drugs and was only about 1 km away from his home that suspicion considered objectively was a reasonable suspicion.
It was practical and expedient in those circumstances to use the search powers under the CIA. An application for a search warrant under the MDA could have also been made. However, Detective Sergeant Fuller said that in light of the fact that Mr Aaron Lam had been stopped at a busy intersection about 1 km from his house, in an area with high visibility such that any associate of Mr Aaron Lam could see that he was in police custody and potentially interfere with evidence that would otherwise be at his home address and because of the time involved in obtaining a search warrant he proceeded to obtain a senior officer's approval under the CIA rather than apply for a search warrant.
Detective Sergeant Fuller's evidence was it would take at least two hours to obtain a search warrant under the MDA. He said that he never previously failed to obtain either a search warrant under the MDA or a senior officer's approval under the CIA when he applied.
Detective Sergeant Fuller's application under the CIA was, I consider, more likely to be based on his desire to move the investigation along rather than protecting Mr Aaron Lam from undue delay.
The CIA allows such an application to be made. He was not required to apply under the MDA. It was in his discretion to apply for a senior officer's approval under the CIA.

Does the house search approval restrict the officers to search only the areas exclusively occupied by Mr Aaron Lam or which he uses in common with others?

Section 133 authorises a search of the place that a person occupies, controls or manages.
The CIA defines 'place' very widely. The senior officer's approval authorised a search of Mr Aaron Lam's home address, which clearly falls within the definition of land, building or structure and is clearly a 'place' within the definition provided. His bedroom is part of that place.
The word 'occupies' is not to be given a legalistic meaning but a common sense meaning bearing in mind the context within which it is used: R v Tao [1976] 3 All ER 65.
Section 19 of the Interpretation Act 1984 (WA) provides that a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object: see also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
There can be more than one occupier of a place. To occupy a place it is not necessary that the person pays rent or is permanently or exclusively at the place although their attendance must be more than transitory, an occupier can include a person who appears to have control or management of the place (under the expanded definition in s 3) or has sufficient measure of control to exclude persons other than their co‑occupier's from that place (common law): Newcastle City Council v Royal Newcastle Hospital [1959] AC 248 [255], Donaldson v Bottroff [1965] SASR 145, R v Fox [1986] 2 Qd R 402, Fox v Warde [1978] VR 362.
In Madrassa Anjuman Islamia of Kholwad v JohannesburgMunicipal Council[1922] 1 AC 500, 504 The Privy Council stated:
The word 'occupy' is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, as when occupation is made the test of rateability; and it is in this sense that it is said in the rating cases that the occupation of premises by a servant, if such occupation is subservient and necessary to the service, is the occupation of his master: Reg. v. Spurrell. ... At other times 'occupation' denotes nothing more than physical presence in a place for a substantial period of time, as where a person is said to occupy a seat or pew, or where a person who allows his horses or cattle to be in a field or to pass along a highway, is said to be the occupier of the field or highway for the purpose of s.68 of the Railway Clauses Act, 1845: Dawson v. Midland Ry. Co....; Luscombe v. Great Western Ry. Co ... Its precise meaning in any particular statute or document must depend on the purpose for which, and the context in which, it is used.
The phrase 'the place that a person occupies, controls or manages', in my opinion, indicates that 'place' is to be given a wider meaning than an area that a person has the ability to control or exclude persons other than their co‑occupiers from. Clearly a person in control or management has those powers so occupies in the context in which it is used must include an area greater than that.
A place that the person occupies, in the context in which it is used, describes an area that a person has a more than merely transitory physical presence in and encompasses areas that such physical presence allows easy and prompt access to.
Thus the skipper of a vessel is the occupier of the whole vessel including the engine room, even though he may only ever stay at the steering station and not venture into the engine room because his physical presence allows easy and prompt access to that room.
There is nothing in the Act that would justify a narrow or restrictive reading of the compendious phrase 'place that the person occupies …' to confining it to only those parts of that home address in fact exclusively occupied by Mr Aaron Lam or which he uses in common with others. To do so would, in respect of adult children having their own room in the family home, bring a degree of artificiality to a relatively simple concept. It would also encourage drug traffickers to hide their drugs in areas that they did not use in common with others or exclusively occupy.
It is not in dispute that Mr Aaron Lam's parents jointly occupied a bedroom and Mr Aaron Lam, his sister and the accused had their own separate bedrooms for their exclusive use and there were common areas of the home used by all family members. Nor is it in dispute that as at 6 February Detective Sergeant Fuller had no information giving rise to any suspicions about Mr Kin Lam.
When asked, Mr Aaron Lam gave the address of the property ultimately searched. He had a bedroom and a safe at that address, he described it as his 'home'. He told the police that several items within Mr Kin Lam's bedroom belonged to him, including electronic scales, the safe and possibly items inside the box. He had access, or his physical presence in the house allowed him easy and prompt access, to all areas within that home.
For these reasons I do not consider that Mr Aaron Lam can as a matter of fact be said to have had only the exclusive use of his bedroom and use in common with others of some other rooms and no access to other areas of the house. It appears to me that factually he can be said to be a joint occupier of the whole property. As a matter of fact I find that Mr Aaron Lam had easy and prompt access to all areas of the house as a natural result of his physical presence in the house and therefore can be said to occupy the whole home address for the purpose of the CIA.
Mr Aaron Lam was an occupier of the home address. The senior officer's approval related to the specified home address. It was a place that Mr Aaron Lam occupies within the CIA.
The senior officer's approval, under s 133, to enter and search a specific address authorised the searching officers to enter and search not only the room of the arrested person at that address but also areas that the person's physical presence allows easy and prompt access to, which in this case includes all other rooms at that home address and the grounds associated with it. Guthrie v Hamilton 1988 SCCR 330 provides some similarities.
The search of the address was lawful.
The senior officer's approval permitted an entry and search for 'a thing relevant to the serious offence' and 'a thing relevant to an offence that is connected with or the same character as, the serious offence'.
If during the searching police located a thing that was relevant to an offence of the same character as the serious offence, the officers are authorised by s 133(7) to seize those things. This is similar to the common law position relating to 'chance' discoveries by police officers in the absence of a search warrant DPP (NSW) v Tamcelik (2012) 224 A Crim R 350 [60] ‑ [71]. That is exactly what occurred. During the search they located drugs and other material relevant to an offence of the same character as the offence facing Mr Aaron Lam. The seizure of those drugs and other materials, which are clearly things within s 5 of the CIA, is specifically authorised and it cannot be said their seizure was unlawful or in any way improper.

If the evidence was obtained improperly or illegally

In any event if the evidence was obtained improperly or illegally because the vehicle stop or house search were not authorised, the evidence in dispute would be evidence either seized or derived from the police purportedly exercising their powers under the CIA and therefore inadmissible, unless Mr Kin Lam did not object to its admission (he does) or the court allows its admission pursuant to s 155 of the CIA.
The onus would be on the party (the State) seeking the admission of the evidence to establish the desirability of admitting the evidence outweighs any undesirability.
In exercising the s 155 discretion, the following factors are required to be taken into account.
1.Any objection to the admission of that evidence –
As noted Mr Kin Lam objects to its admission.
2.The seriousness of the offence in respect to which the evidence is relevant –
The two offences for which Mr Kin Lam has been charged are serious offences carrying a maximum penalty of 25 years' imprisonment or $100,000 fine or both.
3.The seriousness of the contravention of this Act in obtaining the evidence –
The courts have long embraced the principle that a man's home is his castle: Crowley v Murphy (1981) 52 FLR 123, and the law has always jealously regarded the rights of citizens not to have their privacy or property unjustifiably or unlawfully intruded upon: George v Rockett (1990) 170 CLR 104, 110.
Unauthorised searches are serious matter and should not occur. The fact that the police at all relevant times held a genuine belief that they were acting lawfully does not render the gravity of the contravention less serious: The Queen v Hill (2012) 218 A Crim R 301, 320. It is important that the courts do not condone unlawful or improper behaviour by police.
4.Whether any contravention of the Act in obtaining this evidence:
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact.
I accept that Detective Sergeant Fuller honestly believed that he was fulfilling his duty in carrying out the vehicle stop and house search. If there was a contravention it was not intentional or reckless but based on misunderstanding of the reach of police powers.
5.The probative value of the evidence.
There is no suggestion that the cogency of the evidence is affected by any alleged contravention.
The probative value of the evidence is extremely high. It is the central aspect of the prosecution case. If the evidence is excluded the accused would have no case to answer. However the probative value of the evidence does not by itself justify its admission s 155(4).
6.Any other matter the court thinks fit.
I accept that strict compliance with statutory conditions governing the issue of search warrants is an important consideration: Mukevski v The State of Western Australia [2010] WASCA 138.

Conclusion

Mr Aaron Lam's vehicle was properly stopped, entered and searched. His arrest was lawful. The senior officer's approval for the entry and search of the Lansdale address was lawful and authorised the search of all rooms at that address. Items allegedly located in Mr Kin Lam's room where lawfully seized and are admissible against him at his trial.
If the evidence was obtained improperly or illegally, which I do not accept, then the court is required to consider all relevant factors and no one factor is given primacy. It is, as always, a question of weighing the various factors.
Clearly there would have been a serious invasion of the accused's privacy and rights. The safeguard within the CIA to ensure an individual's rights and freedoms are protected when senior officer's approvals are sought would not have been complied with. This is a serious matter.
There is no suggestion the evidence was tampered with or is otherwise unreliable and it is highly probative and of crucial importance in the prosecution of a serious drug offence. The officers had not gone looking for evidence against Mr Kin Lam on the contrary they were looking for evidence against his brother and came across the disputed evidence in that process. The evidence was obtained not through recklessness or intentional disregard by of the restrictions on their search and entry power but as a result of the officers misunderstanding the extent of those powers.
I accept that it is important that those committing drug offences be detected and punished however if the evidence was improperly or illegally obtained then the need to protect the individual from unauthorised vehicle and home searches and the need ensure the safeguards within the CIA are followed would lead me to find the desirability of admitting the evidence is not outweighed by the undesirability of not admitting it and I would not have permitted the State to adduce the disputed evidence.
However I have found the vehicle stop, Mr Aaron Lam's arrest, the senior officer's approval for the house search and the search of the whole house and the seizure of the disputed evidence were authorised by the MDA and the CIA and the disputed evidence is lawfully obtained and admissible and the defence application is dismissed.